In a recent SJC decision, at first blush it would appear that the basic ruling comes as no surprise and does not change the way we look at non conforming structures. In Palitz v. Zoning Bd. of Appeals of Tisbury, No. SJC-11678, 2014 WL 7930410 (Mass. Mar. 3, 2015), the court said:
“Although preexisting nonconforming status under the Zoning Act runs with the land…, ‘the introduction of a new nonconformity to a pre-existing nonconforming residential structure requires a variance’”
Seems straightforward doesn’t it? Not so fast.
The case pertained to a preexisting non-conforming structure in Tisbury, which has a zoning bylaw that states: “This ordinance shall not apply to existing buildings or structures, nor to the existing use of any building or structure, or of land to the extent to which it is used at the time of adoption of this ordinance, but it shall apply to any change of use thereof.” The land owner obtained endorsement of a plan of land pursuant to ch. 41, § 81L, placing the building on a separate lot, as the overall tract had three dwellings that preexisting the adoption of the subdivision control law in the Town of Tisbury. The statute reads:
“…the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision.” Mass. Gen. Laws Ann. ch. 41, § 81L (West)
The landowner sought a variance to tear down the non-conforming building and build a new dwelling within the same footprint. The Court mentioned that the new building would have been taller than the old building and would have blocked the view of Vineyard Haven Harbor for the abutter across the street. The ZBA denied the variance.
You have to read the decision yourself to appreciate the Court’s analysis. Please read it and get back to me if you can follow the analysis. The troubling conclusion is that the decision appears to say that a lot shown on a ch. 41, § 81L plan, which does not meet all applicable zoning requirements at the time of endorsement, is not a lawful lot unless a variance is issued to cure all dimensional non-conformities. I understand that certain towns are now being advised that lots created by §81L cannot be placed in separate ownership, or thereafter constructed upon, without variances to cure all their dimensional limitations. To which I say: Uh oh! If that was the intention of the legislature, there would be no reason for said last line within §81L!
There must be thousands of lots out there which were created by §81L, and then conveyed into separate ownership. Does the decision now render all of them illegal? When we perform a title examination how are we supposed to determine if a plan was endorsed under §81L? And if we suspect a plan was endorsed under §81L, are we then expected to research the archives of the local zoning bylaw and determine if the lot complied with the then applicable zoning when it was conveyed into separate ownership?
Clearly, unless a contrary interpretation of the protections afforded by §81L prevail in the future, any landowner with a 81L lot should be advised to obtain a variance for all new construction and simultaneously seek a variance for all lot dimensional non-conformities, notwithstanding that prior to March 3, 2015 we believed the lots to be lawfully non-conforming.
I would be interested in alternative interpretations.
PAUL F. ALPHEN, ESQUIRE
Alphen & Santos, P.C.